DA 11
- 0537 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 12MT 128 MONTANA WILDLIFE FEDERATION, NATIONAL WILDLIFE FEDERATION, Plaintiffs and Appellants, v. MONTANA BOARD OF OIL & GAS CONSERVATION, Defendant and Appellee, and FIDELITY EXPLORATION & PRODUCTION COMPANY,

Defendant
- Intervenor and Appellee, and MONTANA PETROLEUM ASSOCIATION, Defendant
- Intervenor and Appellee
.
APPEAL FROM: District Court of the Sixteenth Judicial District,

In and For the County of Fallon, Cause No. DV 08
- 34 Honorable Joe L. Hegel, Presiding Judge COUNSEL OF RECORD:

For Appellants: David K. W. Wilson, Jr. (argued); Morrison, Motl, and Sherwood , PLLP; Helena, Montana For Appellee : Norman C. Peterson (argued),Agency Legal Services; Helena, Montana (Montana Board of Oil & Gas Conservation) June 19 20122 Dana L. Hupp (argued), Gough, Shanahan, Johnson, & Waterman, PLLP; Helena, Montana (Fidelity Exploration & Production Company) Steven J. Lechner (argued), Mountain States Legal Foundation; Lakewood, Colorado (Montana Petroleum Association) Steven W. Jennings, Colby L. Branch; Crowley Fleck; Billings, Montana (Montana Petroleum Association) Argued : April 4, 2012 Submitted: April 11, 2012 Decided: June 19, 2012 Filed:

__________________________________________ Clerk3

Justice Beth Baker delivered the Opinion of the Court. ¶1 The Montana Wildlife Federation(MWF)and National Wildlife Federation (NWF ) ( collectively “Federations ” ) appeal the Sixteenth Judicial District Court’s order granting su mmary judgment to defendants Montana Board of Oil & Gas Conservation (Board or MBOGC), Fidelity Exploration and Production Company (Fidelity), and Montana Petrol eum Association (MPA) (collectively “Appellees”). We affirm the District C ourt’s grant of summary judgment
. We consider three issueson appeal : ¶2 1. Whether the District Court erred in conducting its review under § 82

- 11
- 144, MCA, and in considering evide nce that was not part of the administrative record
. ¶3 2. Whether the District Court erred in dete rmining that twenty

- three individual environmental assessments prepared by the Board f or gas development in the Cedar Creek Anticline were adequate under the M ontana Environmental Policy Act. ¶4 3. Whether the District Court erred in ruling that MBOGC did not have to prepare a programmatic environmental impact statement for oil and gas development in the Cedar Creek Anticline area. **INTRODUCTION** ¶5 At issue is theMBOGC’s issuance of twenty
- three gas well permits to Fidelity in the area known as the Cedar Creek Anticline (CCA), a ma jor geologic feature that extends for nearly 120 miles, from Glendive, Montana at the north, through Baker, Montana, and into North Dakota. Its southern end is in South Dakota. The CCA is the largest oil and gas producing structural geologic feature in Montana. Natural gas exploration began in the CCA area in 1912, and significant ga s dev elopment occurred between 1914 and 1920. Oil wa s discoveredin the CCA in January of 1952. The CCA hosts a large industrial complex containing both surface and sub
- surface infrastructure4

associated with natural resource development including oil and gas drilling, windmills, and an underground gas storage reservoir. Within the CCA are the Cedar Creek Gas Field and the Cedar Creek Oil Field. Fields in parts of F allon, Wibaux, Prairie, and Dawson Counties produce oil and gas from the CCA. The Cedar Creek Gas Field is in the hig hest elev ation of the CCAand is approximately three to fiv e m iles wide. As of 2008, there were 1100 wells drilled in the Cedar Creek Gas Field. At the time the Federations filed suit, Fidelity operated 926 gas wells in the field , holding leases to approximately 62,256 acres of land. ¶6 The MBOGC was established in 1953 with the passage of the Montana Oil and Gas Cons erv

ation Act. The MBOGC has broad authority over the issuance of permits to drill for and the regulation of oil and gas. Section 82
- 11
- 111, MCA. On August 7, 2008, Fidelity submitted applications for permits to drill twelvenatural g as wells in the Cedar Creek Gas Field. On October 29, 2008, Fidelity submitted applications for permits for elevenadditional natural gas wells in the field. The MBOGC prepared environ mental assessments for each application and issued Fidelity permits to drill twenty- three new natural ga s wells. Due to the nature of the ga s wells, only infrequent site visits and limited infrastructure are required. Namely, there is no need for water, improved roads , or electric motors
. As a general rule, o il wells require more monitoring and infrastructure than do the type of ga s wellsat issue
. ¶7 The CCA also is home to various animal species, notably here, the sage grouse. Sage grouse depend on sagebrush to feed, breed, nest , and live. When sagebr ush is5

destroyed by human activity such as the construction of roads and power lines, conversion of land to tillage agriculture, or is replaced with other grass to improve range forage for livestock, sage g rouse lose critical habitat. I t is estimated that approximately fifty percentof the sagebrush in the United States has been destroyed or lost. The Court takes judicial notice, pursuant to M. R. Evid. 201, that the U.S. Fish and Wildlife Service
announced in March 2010 its finding that rangewide listing of the greater sage grouse as a threatened or endangered species is warranted, but precluded by higher priority listing actions. 7 5 Fed. Reg. 13910 (March 23, 2010). The sage grouse maintain a number of breeding grounds (called “leks”) on the CCA
. F ederations’ expert opined that eight of the proposed twenty- three wells are within two miles of an existing lek
. Federations challenge the issuance of the permits on the premise that the environmental assessments underlying them did not adequately assess the potential impactst o the sage grouse and their breeding grounds
. They also assert that MBOGC should be required to conduct a programmatic evaluation of the environmental impacts of gas well drilling in th e CCA.

**PROCEDURAL AND FACTUAL BACKGROUND Role of the MBOGC and Other A** **gencies** ¶8 The MBOGC and other state and federal ag

encies play

various rolesin the protection and management of natural resources , compliance with environmental laws , and the issuance of

drilling permits. The MBOGC has reg ulatory control over the drilling of oil and gas wells and is authorized to take measures to prevent waste of oil and gas resources , to prevent contamination of or damage to surrounding land or underground6

strata, and t o promote environmentally sound development of oil and gas in Montana
. Section 82
- 11
- 111, MCA. In the exercise of its jurisdiction ov er oil and ga s wells on private/fee and State owned lands, § 82
- 11
- 103, MCA, the Board is required to comply with the Mon

tana Environmental Policy Act (MEPA) . Section 75
- 1
- 101, et seq., MCA; Admin. R. M. 36.2. 524 (MEPA requires that “the agency shall determine the significance of impacts associated with the proposed action.”). ¶9 The federal Bureau of Land Management (BLM), part of the Department of the Interior, carries out a variety of prog rams for the management and conservation of federally owned land and resources. BLM’s role in oil and gas development is limited: it is responsible for ensuring that the federal mineral resource is conserve d and dev eloped in a safe and environmentally sound manner. The BLM has no state - level equivalent. The duties undertaken by BLM at the federal level are split among various ag encies in Montana: the Department of Natural Resources and Conservation (DNRC ) , the Department of Environmental Quality (DEQ) , Montana Fish , Wildlife, and Parks (FWP ) , and the State HistoricalPreservationO ffice. The MBOGC has a more limited rang e of responsibilities in ev

aluating env

ironmental impactsthan doest he BLM. I

n particular, the MBOGC relies on other agencies with applicable exp ertise in complying with MEPA. MBOGCconsults with and relies on FWP for information regarding the conservation and management of wildlife and recreation resources in Montana. ¶10 Before any environmental assessments were conducted in connection with the wells at issue in this case , state and federal agencies prepared two major env ironmental7

rev iews pertaining to oil and ga s dev elopment in the area of the CCA
. As explained bel ow, these reviews were critical to the Board’s decision to issue permitsf or natural gas wells and provide the foundation for its rev iew of hundreds of permit applications annually
. The parties stipulated to admission in the Di strict Court of the underlying Administrative Recordin this case , w hich includes , in part , the two reviews. The Administrative Record is composed of :the Draft ProgrammaticEnvironmental Impact Statement

—Oil and Gas Drilling Production in Montana (1989);the Technical Appendix to t he Draft; the Final Programmatic Env ironmental Impact Statement(EIS)

—Oil and Gas Drilling and Production in Montana (1989); Montana Final Statewide Oil and Gas EIS and Proposed Amendment to the Powder River and Billings Resource Management Plans(2003); MBOGC’s Record of Decision related to the EIS; MBOGC Orders related to the Cedar Creek Gas Field and Fidelity’s 2003 Application for an Order increasing Well Density; d ocumentation contained in the Well Files for the wells associated with the environmental assessments challenged by Federations; d ocumentation contained in the Well Log Files for

thewells being challenged; Well Production reports for the wells being challenged; and five different articleso f scientific research on sage grouse populations and energy development. The following discussion comes from information contained inthe Administrative Record, except as otherwise noted. **The 1989 PEIS** ¶11 In 1989, the MBOGC undertook to preparea Programmatic Environmental Impact Statement on Oil and Gas Dril ling Production in Montana (1989 PEIS), the goal of which8

was to establish “a quick and efficient method for [MBOGC] to follow in integrating [ MEPA] into its decision making.” The Board was required to prepare the programmatic statement pursuant to the 19 87 Legislature’s Senate Bill 184 ( 1987 Mont. Laws ch. 473 ) , which granted the Board a two -year exemption from the requirements of MEPA ending on June 30, 1989. In January of 1989, the MBOGC, along with the DNRC , released a draft PEIS for public comment. The 1989 Montana legislature passed Senate Bill 201 , which authorized MBOGC to complete the PEIS and adopt a process to review drill p ermits in compliance with MEPA
. 1989 Mont. Laws ch. 566
. The 1989 PEIS presented various alternatives for addressing env ironmental reviews from which the Boarda dopted
a rev iew process for permitting wells. The draft 1989 PEIS concluded that for the v ast
ma jority of wells, the only documentation necessar y to show compliance with MEPA i s a brief checklist Environmental Asse ssment(EA)p repared by MBOGC staff. The draft version of the 1989 PEIS analyzes areas with low to moderate impact potential for wildlife, including a discussion on the impacts to sag e grouse from oil and gas activity, particularly the birds’ susceptibility to disturbance during strutting season. The final 1989 PEIS summarized and updated the draft, and was released in December 1989. ¶12 The 1989 PEIS sets forth the steps the MBOGC must fulfill to complete a Level 1 MEPA review. Over the Federation s ’ objection, the District Court admitted the affidavit of Tom Richmond, Division Administrator for MBOGC
. Richmond’s affidavit states that, u nder a Level 1 Review, “ it is assumed that accurate information about both the surface and sub
- surface is readily availabl e for a proposed drilling operation, and that no9

unusual circumstances would raise questions about its ability to comp ly with applicable MBOGC rules.” For Level 1 review, the final 1989 PEIS articulated the following steps: a desk review of data submittedby the operator or collected by the MBOGC, preparation of an environmental checklist, and attachment of special permit conditions to address environmental concerns. The 1989 PEIS included an example of a checklist for MBOGC to use in ev

aluating the impacts associated with drilling
. The form utilized by MBOGC for the twenty- three wells in questionm irrors this example and consists of a series of requests for information and decisions about each well. E ach checklist EA has ten categories for review: (1) Operator and Well Location; (2) Air Quality; (3) Water Quality; (4) S oils/Vegetation/Land Use; (5) Health Hazards/Nois e; (6) Wildlife/Recreation; (7) Historical/Cultural/Paleontological; (8) Social/Economic; (9) Remarks or Special Concerns for the Site; (10 ) Summary: Ev aluation of Impacts and Cumulative Effects. **The 2003 FEIS**  ¶13 In 1999, MBOGC, along with the DEQand the BLM , began work on a new programmatic env

ironmental impact statement(2003 FEIS) to analyze and disclose reasonably anticipated impacts fro m coalbed natural gas (CBNG) development in Montana. The 2003 FEIS determined that CBNG wells were not likely to be economical if drilled and produced on a single well basis, and that , b ecause of the need for installation of significant water-handling inf rastructure, project level permitting was likely necessary for CBNG production. This case does not involve CBNG wells.10

According to Richmond, however, “while the 2003 FEIS focused on the potential impacts of CBNG exploration and production throughout thestate, the effects of anticipated conventional oil and gas development were also analyzed.” However, the planning area in the 2003 FEIS did not include Fallon, Wibaux, Prairie , and Dawson Counties, those counties producing the oil and gas f rom the CCA. Instead, the counties assessed were the adjacent Custer and Carter Counties, along with Blaine, Gallatin, Park, Wheatland, Golden Valley, Musselshell, Sweet Grass, Stillwater, Carbon, Yellowstone, Big Horn, Treasure , Powder River, and RosebudCounties
. ¶14 The permitting process developed in connection with the 1989 P EIS was reviewed by MBOGC when it, along with the other agencies, prepared the 2003 FEIS. Richmond noted during his deposition (not part of the administrative record), that “what the 2003 EIS didallow us to do was to review the new information and make a refreshed decision about our permitting process on conventional oil and gas.” He further explained: The 2003 EIS, because it has an emphasis on coalbed, required us to look at how we would permit coalbed methane and the decision that we made is that we would permit it on a project level basis rather than an individual well basis
. . . So the process of making that decision caused us to look at how we do individual well permits for conv entional o il and ga s and we decided at that time not to change that process and try and incorporate a greater degree of proje ct level permitting. The 2003 FEIS had a much greater depth of analysis than the 1989 PEIS because the 2003 FEIS rev

iewed land management g enerally, and not just oil and gas reg ulation. Significantly, however, MBOGC “left the individual well permit process in place for conventional oil and gas wells.” The 2003 FEIS included a review of impacts to wildlife,11

including sage grouse, and considered the impacts of both CBNG dev elopment and conventional oil and gas development. The 2003 FEIS also explicitly noted thatit “may be tiered from or incorporate by reference other documents” including the 1989 PEIS. The MBOGC has not performed any other p rogrammatic evaluation specific to oil and gas development in the CCA. **The Completion of Environmental Assessment**  **s and Issuance of Permits** ¶15 Steven Sasaki is the Chief Field Inspector for MBOGC and was responsible for gathering information for, assessin g, and performing the environmental assessment s for the twenty
- threepermits at issue in this case. In so doing, h e utilized the checklist form developed as part of the 1989 PEIS. Sasaki has been an employee of the MBOGC for twenty- two years and has trav eled the length of the CCA, making approximately ten trips to different parts of the CCA in preparing hundreds of environmental assessments for gas wells in the Cedar Creek Gas Field. S asaki testified by h is affidavit , over the Federation s ’ objection, t hat each assessmentrequired particular information and consideration of the circumstances of each well, along with its cumulative effect. ¶16 Sasaki ’s affidavitd escribed that prior to completing the assessments , he spoke with a FWPb iologist, who directed him to consult the “Montana Heritage Tracker” website (http://mtnhp.o rg ), an extensive database of information on animal and plant species in Montana. The form created in the 1989 PEIS directs that FWP is responsible for identifying “sensitive wildlife area s.” The form contains a section for w hether there
are threatened or endangered species or sensitive habitat in the geographic area subject to12

the permitting process . S asakic onsulted the Heritage Tracker database andrev iewed topographic maps to determin e whether the areas in question were close to designated wildlife refuges, national grass lands, national parks, or similar designated areas. Sasaki’s affidavit states that he “found there were no threatened or endangered species or sensitive wildlife are as in the proximity of any of the proposed wells, nor were there any state or federally designated sensitive wildlife areas.” Following his review o f information concerning

the area of the newly requested permits, the previously drilled wells and their re lated infrastructure, Sasaki determined that the addition of twenty- three wells would not create new human access to wildlife habitat or lead to further cumulative impacts. **The Current L itigation**  ¶17 Federationsb rought suit in 2008 following issuance of th e twenty- three permits, contending the environmental assessment s were inadequate under MEPA. The complaint requestedt

hat the District Court (1) declare that thetwenty- threeE As are inadequate under MEPA; (2) declare that MBOGC is in violation of MEPA fo r fa iling to perform a programmatic review of

the oil and ga s development in the Cedar Creek Gas Fiel d; and (3) issue ano rder enjoining MBOGC from further issuing well drilling permits until a programmatic review has been performed under MEPA on the Cedar Creek Gas Field. In particular, Federationsargued that “sage grouse are particularly susceptible to the development at issue” and that oil and gas development “results in calculable impacts on breeding populations.” The District C ourt granted Fidelity’ s motion to intervene as a13

defendant on February 6, 2009 , and MPA’s motion to intervene on April 4, 2009. The parties filed cross - motions for su mmary judgment. Appellees’ motion for su mmary judgment ar gued that issuance of the environmental assessment s w as proper under MEPA and that the MBOGC’s approval of infill gas wells was not a major stat e action necessitating an EIS. ¶18 Following a motion by Appellees, the District Court concluded that § 82
- 11
- 144, MCA, appliedto the proceedings. It provides in part that for a suit challenging any rule, order or act by the Board, “the suit shall be
. . . tried de novo
. . . and disposed of as an ordinary civil suit and not upon the record of any hearing before the [MBOGC].” After a period of discovery, the parties submitted additional materialto the court, and the agency
was permitted to submit affidavits and other matters to supplement the administrative record. The District Court also granted MBOGC’s unopposed motion to lodge the MBOGC’s Administrative Record (asdiscussed above) and include it in the record of the court . ¶19 Supplementing their motion for su mmary judgment, Federationso ffered the affidavit of

James Gore, a wildlife biologist with experience studying sage grouse and other birds. He attestedto g eneral knowledge about sage grouse and the impacts that the human populatio n can have on them. I n its later order on summary judgment, the District Court concluded that ,t

hough Gore is an expert on sage grouseg enerally, he “is not an expert reg

arding oil an d gas wells and the infrastr ucture required to support them, ” nor did he acknowledge the relatively small impact of an infill gas well as opposed to drilling14

and operating an oil well. Appellees also provided additional information to the court in supporto f their cross -motion for summary judgment, in the form of a ffidavits from MBOGC staff, F idelity em ployees, and wildlife experts which supported their position th at additional impacts on sage grouse would be minimal. ¶20 After rev

iewing the ev

idence, the D istrict Court determined it could set aside the MBOGC’s permit issuance under § 82
- 11
- 144, MCA, if it found the action to be “arbitrary, unreasonable, capriciousand [sic] abuse of discretion or otherwise not in accordance with the law.” The District Cour t found that each of the environmental assessment s at issue is “tiered” to the 1989 PEIS and the 2003 FEIS, recognizing tiering
as“ an accepted practice in which an agency relies on and incorporates analysis from a previously prepared environmental document into a subsequent analysis” as a means to eliminate unnecessary repetitive discussions. ¶21 The court concluded that “MBOGC reasonably determined that approval of the infill ga s wells in a pre - existing gas field where the infrastructure is almost entirely in place would be a routine action with limited environmental impact” and it was reasonable for the MBO GC to conclude that a checklist env ironmental assessment , rather than an EIS , was adequate. In granting Appellees’ motion for summary judgment, the District Court held that the Federations failed to rebut the presumption of validity in the Board’s decision and that the MBOGC had given a “sufficiently hard look” at the potential environmental impact of the proposed wells. This appeal followed.15

¶22 Over the c ourse of the litigation, the number of contested wells has been narrowed from the original twenty
- three. Federations’ expert, Gore, in his affidavit, pointed to the fact that any well located within two miles of active breeding leks could adversely affect those leks. Gore identified well numbers 2863, 2864, and 2869 in the Buffalo Creek drainage; well numbers 2257 and 2261 in the Sandstone Creek drainage; and well numbers 2252, 2253 , and 2256 in the Little Beaver Creek drainage as being within two miles o f lek sites. The District Court determined that “all parties and witnesses agreed that
. . . 15 g

as wells at issue in this case are not located in close proximity of any of the sage grouse leks and present no risk of harm to sage grouse leks.” F ederationsd o not dispute this finding on appeal. Fidelity’s Dennis Zander testified by affidavit that five of the eight disputed wells were scheduled to be drilled in 2010. At oral argument, Federations’ counsel acknowledged that some of the wells at issue already had been drilled, and MBOGC’s counsel indicated that only three undrilled wells remain directly at issue. ¶23 Two of

the well sites , numbers2253 and 2256 , are located on surface owned by the State of Montana. I n addition to the EAs prepared by the MBOGC, the DNRC prepared EAs addressing potential environmental impacts at these two sites. The DNRC indicated that the sites were within one mile of active sage grouse leks and that timing restrictions would be implemented between March 1 and June 15 of any ye ar if permits
were issued to Fidelity. Howev er, the DNRC indicated there would otherwise be no significant impact on the sage grouse. There is no challenge to the EAs performed by16

DNRC. The dispute, in essence, centers on six wells at most, and perhaps as fe w as three, given recent drilling activity. No party sought a stay of the District Court’s order
on appeal , nor does the record reflect a motion in the District Court for an injunction pending appeal. M. R. Civ. P. 62; M. R. App. P. 22
. **STANDARD OF REVIEW**  ¶24 We review a district court’s grant of summary judgment de novo. Smith v. BNSF Railway , 2008 MT 225, ¶ 10, 344 Mont. 278, 187 P.3d 639. Summary judgment is appropriate under M. R. Civ. P. 56 where there is an absence of genuine issues of material factand a party is entitled to judgment as a matter of law. Smith , ¶ 10
. No party has argued that disputes of material fact preclude summary judgment in this case. ¶25 The standard of review for MEPA decisions is “whether the record establishes that the agency acted arbitrarily, capriciously or unlawfully.” Ravalli County Fish & Game Assn. v. Mont. Dep t. of State Lands , 273 Mont. 371, 377, 903 P.2d 1362, 1366 (1995) (quoting N

. Fork Preservation Assn. v. Dep t. of State Lands , 238 Mont. 451 , 458
- 59, 778 P. 2d 862, 867 (1989))
. A review under the arbitrary and capricious standard “does not permit a rev

ersal merely because the record contains inconsistent evidence or evidence which might support a different result. Rather, the decision being challenged must appear to be random, unreasonable or seemingly unmotivated based on the existing record.” Hobble Diamond Ranch, LLC v. State , 2012 MT 10, ¶ 24, 363 MT 3 10, 268 P.3d 31. ¶26 Decisions of the MBOGC may be set aside if the C ourt determines them to be17

(a) arbitrary, unreasonable, capricious, [an] abuse of discretion or otherwise not in accordancewith law; (b) contrary to constitutional right, power, privilege, or immunity; (c) in excess of statutory jurisdiction, authority, or limitations or short of statutory right; (d) without observance of procedure required by law; or (e) unwarranted by the facts[.] Section 82
- 11
- 144(2), MCA. **DISCUSSION** ¶27 1. Whether the District Court erred in conducting its review under § 82

- 11
- 144, MCA, and in considering evidence that w as not part of the administrative record. ¶28 Federations contend that the District Court erred in applying the standard of
rev iew set forth in § 82
- 11
- 144, MCA . That section providesin part : A ny interested person adversely affected by any provision of thi s chapter or by any ruleor order

adopted by the board hereunder or by any act done or threatened thereunder may obtain court review and seek relief by a suit for an injunction against the boarda s defendant
. . . . The suit shall be given preferential setting and shall be tried de novo and disposed of as an ordinary civil suit and not upon the record of any hearing before the board. Section 82
- 11
- 144, MCA (emphasis added). This sectioni s contained in the part of the Montana Code Annotated entitled “Reg ulation b y Board of Oil and Gas Conservation, ” within the Oil and Gas Conservation chapter. Federationsc ontend that a district court’s
rev iew under this section does not apply to a MEPA claim but rather to other administrative actions by the MBOGC provid ed for in the preceding sections of the chapter. They contend that since the case was filed under MEPA, specifically § 75
- 1
- 201(6)(a)(ii), MCA

(2007) , the court’s review is limited to the administrative record. They argue the District Court’s consideration of evidence provided by Appellees that did not constitute part of the administrative record was in error. C iting Skyline Sportsman’s18

Assoc. v. Bd
. of Lan d C

o mm r s . , 286 Mont. 108, 951 P.2d 29 (1997), Federations contend the court’s review of the outside
- the
-record evidence they submittedwas proper, but that such supplementation of the record is not a two
-way street . ¶29 We conclude that the District Court properly considered both parties’ ev idence. Section 82
- 11
- 111(2)(c), MCA, grants the Board authority to adopt and enforce rules to implement its objectives. Admin. R. M. 36.22.601 requires an individual to file an application for a permit with the Board to drill an oil or gas well. Federations’ complaint sought to enjoin the Board from issuing well perm its until it conduct edapr ogrammatic
rev iew in accordance with MEPA on the Cedar Creek Gas Field . The lang uag e in § 82
- 11
- 144, MCA, applies to “a suit for an injunction”challenging any act of the MBOGC within its regulatory jurisdiction and specifically mentions actions involving “the right to drill a well.” Though the particular act challenged in this case is the Board’s MEPA
rev iew, the legislature has directed that “when a general and particular provision are inconsistent, the latter is paramount to the former, so a particular intent will control a general one that is inconsistent with it.” S ection 1
- 2
- 102, MCA. B ecause § 82
- 11
- 144, MCA, go verns review of MBOGC actionsunder a statutory framework in which review and determination of well application s is one of its primary functions, we conclude that this provision is the more particular with respect to the review of oil and gas permitting decisions. ¶30 Because the statute is dispositive on this issue , we do not further consider the parties’ argument sregarding consideration of non
-record evidence in other contexts
. The19

District Court did not err in applying § 82
- 11
- 144, MCA, and in considering evidence outside the administrative record
. ¶31 2. Whether the District Court erred in determining that twen ty- three individual environmental assessments prepared by MBOGC for gas development in the Cedar Creek Anticline were adequate under the Montana Environmental Policy Act. ¶32 We note at the outset that since MEPA is modeled after the National Env ironmental Po licy Act (NEPA), federal case law construing parallel provisions in NEPA is persuasive. Kadillak v. Anaconda Co. , 184 Mont. 127, 137, 602 P.2d 147, 153 (1979). MEPA is “essentially procedural .” Like its federal counterpart, “it does not demand that an agency make particular substantive decisions. ” Rather, it requires “ an ag ency to review projects, prog rams, legislation, and other major actions of state go vernmentsignificantly affecting the quality of the human environment in order to make informed deci sions
. ” Ravalli County Fish & Game Assn. , 273 Mont. at 377
- 78, 903 P.2d at 1367. The administrative procedures for MEPA are outlined in Title 36, Chapter 2, S ub
- chapter 5 of the Administrative Rules of Montanaand are discussed inmore detail later in th is opinion
. ¶33 Federations raise three grounds in supporting their conten tion thatthe twenty
- three EAs are inadequate under MEPA: 1) MBOGC failed to properly tier its review to previous studies; 2) MB OGC fa iled to take a “hard look”at oil and g as dev elop ment in the CCA; and 3 ) MBOGC failed to ev aluate the cumulative impactso f increased well approvals . First, we provide additional information on the 1989 PEIS and 2003 FEIS and the ir analys e s of the impacts of ga s and oil development on sage grouse. We then20

addressthe issue of “tiering ” in our analysis of the Federations’ “hard look” and “cumulative impacts”arguments . **1989 PEIS and 2003 FEIS’s Reviews on Wildlife Impacts**  ¶34 The draft 1989 PEIS included a section on impacts of oil an d g as development on
wildlife. The draft indicated that “sage grouse, sharp
- tail grouse, and waterfowl could be affected by oil and gas activity in Montana , ” but that a “general discussion of possible wildlife impacts on the various oil and ga s regions is difficult” because of the varied top ography and habitat statewide. Moreover, the draft 1989 PEIS included a section analyzing the cumulative effect of oil and g as drilling on wildlife, stating “a cumulative effect of o il and ga s drilling results from the additional development that occurs if petroleum or natural gas are found. The discovery of ga s or oil in one location often stimulates more intense exploration in that immediate area and adjacent areas.” Citing to studies on sage grouse and resource extraction, the draft analyzed areas with low to moderate impact potential for wildlife, including the sage grouse: “in nonmountainous portions of Montana, sage grouse and sharptails would be vulnerable to oil and gas activity in the spring when the birds are concentrated on strut ting (mating) grounds.” Namely, construction and use of roads and powerlines could displace birds, decrease local reproduction, and result in birds being killed
. Further, the level of impact on sage grouse would vary, dependent on whether the oil or gas well proved productive. The draft 1989 PEIS also addressed how cumulative impacts to wildlife could be mitigated and suggested efforts to protect sage grouse specifically, including creating a one - quarter-21

mile buffer strip around known strutting grounds, and restricting activities in the early morning hours of spring when the grouse areactive in strutting grounds. ¶35 The final 1989 PEIS noted specifically that in the majority of c ases, the ma

jor adverse impacts on the environment from well siting can be avoided if proper care is taken. Notably, the final 1989 PEIS stated that other than considerations applicable to all drilling operations, “the potential for adverse impacts is almost entirely dependent on the sensitivity of individual drilling l ocations.” In the section discussing wildlife and fisheries, the final 1989 PEIS states that “the likelihood of an adverse impact occurring in any particular locations depends on the intensity of oil and gas activity, including length of time that operations occur, sensitivity to the environment, cumulative disturbance that
a wildlife species has been subjected to previously, and implementation of mitigating measures.” ¶36 The 2003 F EIS provides further analysis of potential harm to wildlifeand is not limited to the impacts of CBNG dev elopment( also called CB Mor “coal
-bed methane” development) , but also includes discussion of conventional oil and ga s extraction
. Chapter 3 of the 2003 FEIS, titled “Wildlife,” specifically notes that sage grouse are “a possible candidat e for listing under the [Endangered Species Act]” and discusses in detail the sagebrush habitat the birds need to survive, along with leks. Chapter 4 of the 2003 FEIS , entitled “Environmental Consequences,” describes the effect of conv entional oil and gasproduction
.22

¶37 An exampleo f the similar types of impacts caused by traditional oil and gas development and CBM dev elopmentc an be found under the “Management Common to All Alternatives” sectionin Chapter 4 of the 2003 FEIS ( indicating the “direct and indirect impacts of

road construction and use on wildlife and wildlife habitat have been well documented for oil and gas projects and other natural resource developments
. . . the types of impacts expected to result from oil and gas dev elopment would be simil ar to those described in detail under Alternative A for [coal bed methane] d evelopment.”)
. The impacts discussedf or Alternative A include: “direct habitat loss and direct and indirect impacts because of habitat disruption and wildlife disturbance caused by roads, pipelines, and utility corridors would cause the bulk of impacts on wildlife” and that “g rouse are particularly susceptible to collision mortality (from cars) during the spring because they often fly to and from leks near the ground.” The analysis also includes a table outlining the anticipate dimpacts on sag e and sharp
- tailed grouse of three types of direct impact, and nine types of indirect impact. Moreover, the chapter devotes an entire page to a discussion highlighting that “sage grou s e are extremely sensitive to human disturbance and habitat alteration.” **A .**  **“Tiering”** ¶38 “ Tiering is the process of incorporating by reference coverage of g eneral matters in broader environmental impact statements, such as national program or policy statements, into subsequent narrower environmental analys e s, such as site
- specific23

statements. ” N. Plains Res. Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1088 (9th Cir. 2011) ; 40 C.F.R. § 1508.28
. ¶39 The parties ag

ree that the EAs in question do not explicitly reference the 1989 PEIS or 2003 F EIS
. Richmond indicated in his affidavit to the District Court that the checkli st EAs at issue in this lawsuitwere tiered to the 2003 PE I S and that the MEPA
rev iew conducted in connection with the 2003 FEIS is implicitly incorporated into the checklist EAs. He admitted , h owever, that it was a “big oversight” that the EAs did not explicitly state they were tiered to the 1989 PEIS or specifically reference the 2003 F EIS. ¶40 Federationsargue that the EAs did not tier to the previous analys e s because there is no mention of the 1989 or 2003 reviews in the EAs, that the documents are not on the
same issue, and that reliance on the 1989 review is suspect because it was conducted before the v

ast ma jority of the scholarly work discussing the impacts on sag e grouse by oil and g as dev elopment was completed. Federationsc ite S
. Or
. C itizens v. Clark, 720 F.2d 1475, 1480 (9th Cir. 1983) , f or the proposition that agencies have a continuing duty to evaluate new information when tierin g to an EIS that is more than five years old. They also argue that documentation of tiering must appear in the document being tiered from, citing Village of False Pass v. Watt , 565 F. Supp. 1123, 1141 (D. Alaska 1983)( “The adequacy of the environmental impact statement itself is to be judged solely by the information contained in that document. Documents not incorporated in the (EIS) by reference or contained in a supplemental (EIS) cannot be used to bolster an inadequate discussion in the (EIS). ”) , aff’d 733 F.2d 605 (9th Cir. 1984)
. The court in Vi llage of24

False Pass proceeded

to state that while an administrative record cannot be used to remedy a deficiency in an EIS, a court may look at information in the administrative recordand take additional evidenceto determine whether the scope of discussion in the EIS was adequate. 565 F. Supp. at 1141. ¶41 The quotation citedby Federationsis not in a section of the Village of False Pass opinion discussing

tiering
. Instead, t

hes ection

c ited pertains to thea

dequacy of an environmental impact statement and what a court may consider in determin in g whether
an EIS is deficient
. Moreover, an EA has been describe d by federal courts as a “rough
- cut, low
-budget environmental impact statement.” Sierra Club Northstar Chapter v. Bosworth , 428 F. Supp. 2d 942 , 957 (D. Minn. 2006) (quoting Cronin v. U.S. Dept
. of Agriculture , 919 F.2d 439, 443 (7th Cir. 1990). To the extent an EIS is judged solely by the information it contains and its references to other document s from w hich it istiered

—a question not presented in this case
—an EA does not have the same requirementsas an EIS. ¶42 Despite the checklists ’ l ack of explicit reference, iti s clear from the record that MBOGC staff relied on these past reviews in dev eloping the EAs at issue here. The administrative record lodged with the District Court by agreement of the parties included the 1989 PEIS and 2003 FEIS. Under the 1989 P EIS, MBOGC was required to evaluate
current information and entitled to rely on FWP in assessing wildlife impacts
. MBOGC fulfilled this obligationb y conferring with the FWP wildlife biologist, utilizing the Heritage Tracker database, and reviewing topographic maps for designated wildlife25

refuges, national grass lands, national parks, or other de signated wildlife areas. Undoubtedly, anEA should make specific reference to MEPA documents from which it is tiereds o that members of the public , n ot justthe Board and others involved in the process, are madeaware of the information utilized by MBOGC in issuing permits. Nonetheless , remand for the sole purpose of requiring MBOGC to explicitly incorporate by reference its prior EISs would accomplish little “ save further expense and delay.” Nevada v. DOE , 457 F.3d 78, 90 (D.C. Cir. 2006)
. Applying the standard so f review go verning MBOGC andMEPA determinations , particularly in light of the stipulated administrative record before the District C ourt, we concludethe agencyimplicitly tiered the EAs t o the older analyses and that its failure to articulate reference to them did not render its actions arbitrary, capricious or unlawful
. **B .**  **MBOGC’s compliance with MEPA’s requirements .**  ¶43 The purpose underscoring MEPA is to “declare a state policy that will encourage productive and enjoyable harmony between humans and their environment
. ” Section 75
- 1
- 102(2), MCA. MEPA requires that an agency take a “hard look” at the environmental impacts of a given project or proposal. Ravalli County Fish & Game Assn. , 273 Mont. at 377, 903 P.2d at 1367 (agencies have the ob ligation “to make an adequate compilation of relevant information, to analyze it reasonably, ”and to consider all “pertinent data.”). However, “court review of an agency decision
. . . is limited
. . . [and the Court] does not take a hard look itself but requires that the agency does so. The Court focuses on the validity and appropriateness of the administrative decision making process without26

intense scrutiny of the decision itself.” Cl ark Fork Coalition v. Mont. Dep t. o f Envtl
. Quality , 2008 MT 407, ¶ 47, 347 Mont. 19 7, 197 P.3d 482. “The ag ency must examine the relevant data and articulate a satisfactory explanation for its action, including a rational connection between the facts found and the choice made.” Clark Fork Coalition , ¶ 47. C ourts have h eld that “general statements about ‘possible’ effects and the existence of ‘some risk’ do not constitute a ‘hard look’ absent a justification regarding why more definitive information could not be provided.” Neighbors of Cuddy Mt. v. USFS, 137 F.3d 1372, 1380 (9th Cir. 1998) (quoting Inland Empire Pub. Lands Council v. U.S. Forest Serv. , 88 F.3d 754, 764 (9th Cir. 1996). ¶44 The general requirements of the env ironmental review p rocess under MEPA and the means in which an ag ency determines the necessary lev elo f environmental review
are containe d in Admin. R. M. 36.2.523. A detailed environmental impact statement is required for a “major action of state government significantly affecting the quality of the human environment.” Adm in. R. M. 36.2.523 (1)(b)
. Anenvironmental assessment operates, in part, as an initial evaluation to determine whether an agency must prepare a n environmental impact statement. Admin. R. M. 36.2.522 (9)
. An EA may be in checklist form when the ag

ency determines a routine action withlimited environmental impact is at stake. Admin. R. M . 36.2.525(2). ¶45 In determining the significance of the impacts associated with state action, and what type of assessment is necessary, the state ag ency must ev

aluate the individual and cumulative impacts. Adm in. R. M. 36.2.524 (1)
. An EA must include an ev aluation of27

cumulative and secondary impacts. Admin. R. M. 36.2.525 (3)(d) . We review whether the agency performed an ev aluation of cumulative impacts in determining whether its compliance with MEPA

was lawful. N. Fork Preservation Assn. , 238 Mont. at 460, 778 P.2d at 868. An analysis of “cumulative impacts” means reviewing: the collective impacts on the human environment of the proposed action when considered in conjunction w ith other past and pre

sent actionsrelated to the proposed action by location or g eneric type. Related future actions must also be considered when these actions are under concurrent consideration b y any state agency through pre - impact statement studies, separate impact statement evaluation, or permit processing procedures. Admin. R. M. 36.2.522 ( emphas e s added). ¶46 Federations argue that the twenty- three EAs at issue are virtually identical and contain no evaluation of the potential impacts to wildlife, in particular, s age grous e. They further argue the 1989 PEIS and 2003 FEIS both contemplate the need for further site specific analysis, which did not occur here
. Federationsp oint to the two EAs prepared by the DNRC as an example of an EA appropriately acknowledging the presenc e of and risk to sag e grouse on the well sites at issue. They arg ue “the fact that MBOGC’s parent agency identified sage grouse leks within a mile of wells 2253 and 2256, and MBOGC fa iled to identify these same leks when it ev aluated the same wells under the same MEPA standard demonstrates the patent inadequacy of MBOGC’s environmental review. ” Federations arg ue the checklist utilized by MBOGC did not address cumulative effects because it ignored the other twenty- three wells being concurrently permitted in the same area , and that its overall assessment did not amount to a “hard look”at the impacts of the wells
.28

¶47 In response, MBOGC em phasizes Sasaki’s affidavit, which observes that the EA checklist form requires consideration of the circumstances of each well and its cumulative effect, if any. Sasaki noted in the cumulative effects section of the EAs that the wells are being drilled in “an existing ga s field.”He testified by affidavit that each EA was completed individually, and pointed out that the forms contain distinct responses where differences exist. Sasaki determined that because of the hundreds of existing wells in the immediate area and their associated infrastructure, the addition of these twenty- three wells would not create new human access t o wildlife habitat. He po inted out that, in contrast to State -ownedland, the MBOGC has no authority to impose surface restrictions upon wells drilled on private land. Sasaki also determined that the twenty- three wells would not lead to further cumulative impactsf rom oil and gas drilling in the CCA
. ¶48 In both the EIS s, the ag ency addresse dcumulative impacts. The draft 1989 PEIS includes a six
-paragraph discussion under the sub
-heading “cumulative impacts.” The section identified the cumulative impactsof oil and gas drilling when coupled with other
resource extraction, such as logging, mining, hydroelectric development, and livestock grazing. The final 1989 PEIS includes a summary of potential impacts to wildlife and fisheries, noting specifically that “[t]he likelihood of an adverse impact occurring in any particular location depends on the intensity of oil and gas activity, including length of time that operations occur, sensitivity of the environment, cumulative disturbance that a wildlife species h as been subjected to previously, and implementation of mitigation29

measures.” Moreover, the final 1989 PEIS concludes that the situation where “major adverse environmental effects are most likely is when a wildcat drilling operation leads to discovery of ac ommercially producible oil or gas reservoir and full
- field production
commences in a prev

iously undeveloped area.” I n the 2003 FEIS, the “Reasonably Foreseeable Development Scenario” analyzed the combined exploration and development of coal bed methane and of conventional oil and gas dev elopment in various counties. Additionally, cumulative impacts (including the impact of conventional oil and gas development) are also analyzed in Chapter 4’s discussion on wildlife. ¶49 We ag

ree with Federations that the simple fact that these twenty- three wells are infill wells in an existing field does not automatically insulate them from a cumulative impacts analysis. We conclude, h owever, that the Board did not ignore cumulative impacts in its assessment of the wells authorized in this case. The agency completed the EAs here on the basis of an extensive administrative record and an institutional body of knowledge upon which MBOGC staff determined the additional wells at issue would have no sig

nificant impact , individu ally or cumulatively . As we notede arlier, the wells at issue are a minor fraction of the ov er a thousand wellsin the Cedar Creek Gas Field. I nf ill development may prompt the need for further analysis if the characteristics of the location suggest the addition of new wells will increase“the collective impacts to the human environment
. ” However, on the record of this case
— given the few number of well permits still in play, their min imal addition to an already significantly developed field, and the absen ce of indicators that sensitive habitat was involved , we hold that the30

EAs’ silence regarding other specific well applications under consideration did not render them unlawful under Admin. R. M. 36.2.525 for failure to sufficiently assess cumulative impact s. ¶50 The Dissent makes an important point which, under a different set of facts, would be compelling. Even a checklist EA shouldprovide sufficient environmental information for informed public scrutiny before decisions are made. Federations’ arg ument inthis
case , however, is that the MBOGC ’s “decisions approving each of the 23 wells should be set aside” as arbitrary and capricious because its determination of no cumulative impacts
was “made witho ut making any analysis at all.” As Federations point out, we have recognized that the omission of a cumulative impacts analysis is relevant to determining whether an agency’s MEPA decision is “unlawful.” Friends of the Wild Swan v. DNRC, 301 Mont. 1, ¶ 29 , 6 P.3d 972 (2000). I n that case, however, as Federatio ns acknowledge, the district court had enjoined the agency from mo ving forward pending completion of thecumulative impactsanalysis, and we upheld that injunction on appeal. Here, s ince no stay was sought or obtained , wedid not have an opportunity to ru le before the agency’s decision took effect ; thus, the question now is limited to a much smaller number of wells
. Further, a s discussed abov e, and not disputed by the Dissent, our examination of the sufficiency of the MBOGC’s “hard look” under the applica ble statute is to be made on the entire record before the District Court. Section 82
- 11
- 144, MCA. On that record, and in light of the present posture of the case, we conclude that the ag ency’s ev

aluation of cumulative effects was adequate. Federations h ave not31

demonstrated that adding the three to six remaining wells under consideration to the existing Cedar Creek Gas F ield , particularly in light of DNRC restrictions on thetwo wellson State
- owned land , would raise thepotential for cumulative impact s sufficient t o trigger additional environmental analysis. 1 Fidelity’s counsel acknowledged during oral arg ument that, had sage grouse been listed as a threatened or endangered species, significant additional analysis would have been required. We trust tha t MBOGC will consider the recent pronouncements by the U.S. Fish and Wildlife Service in its future permitting decisions. ¶51 We affirm the District Court’s conclusion thatthe MBOGC took a sufficient “hard look” under MEPA. Sasaki relied on the informationin the 1989 PEIS and 2003 FEIS, his communicatio n sw ith FWP, his review o f the Heritage Tracker database , and his analysis of

t opographic maps of the area. In his affidavit to the District Court, Sasaki rationally explain edthese steps , and the facts upon which he relied, to come to the conclusion that the additional wells would not lead to further cumulative impacts. He also relied on his own knowledge of the area, having previously prepared 325 EAs for the Cedar Creek Gas Field and conducted multiple site visits. The administrative record contains hundreds of pages of documentation of the Board’s analysis of ga s well drilling in the area in questionov er many years . The compilation of data from the two ma jor environmental studies in 1989 and2 003, alo ng with other Board documentation and

1 Even under the Ninth Circuit’s relatively low standard of proof, a plaintiff alleging that an agency should have analyzed the cumulative impacts of a proposed project along with other projects must show “the potential for cumulative impact.” Te
- Moak Tribe of W

estern S hoshone of Nev. v. U.S. DOI, 608 F.3d 59 2, 605 (9th Cir. 2010).32

scientific literature, coupled with the institutionalized knowledge of MBOGC staff , provides an extensive information base upon which the Board could draw in concluding that the addition of twenty- three wells in a heav ily
- developed field would have limited impact. Our role is not to say whether the Court would have granted the permits in this instance. N. Fork Preservation Assn. , 238 Mont. at 465, 778 P.2d at 871
. Rather, we must determine if the MBOGC was sufficiently thoroughand discerning in its decision
-making process to meet applicable MEPA requirements . We conclude it was
. ¶52 3
. W

hether the District Court erred in ruling that MBOGC did not have to prepare a programmatic environmental impact statement for oil and gas development in the Cedar Creek Anticline area
. ¶53 A “programmatic review” is “an analysis (EIS or EA) of the impacts on the quality of the human environment of related actions, programs, or policies.” Adm in. R. M. 36.2.522 (15)
. As noted above, an E IS is required for “major actions of state government significantly affecting the quality of the human environment.” S ection 75
- 1
- 201(1)(b)(iv), MCA. An “action” is defined in part as “a project or activity involving the issuance of a lease, permit, license, certif icate or other entitlement.” Admin. R. M. 36.2.522 (1) . An EIS is not required if an agency, after evaluating the factors in Admin. R. M. 36.2.524(1), determines that the adverse effects are not significant. Those factors
are: (a) the severity, duration, geographic extent, and frequency of occurrence of the impact; (b) the probability that the impact will occur if the proposed action occurs; or conversely, reasonable assurance in keeping with the potential severity of an impact that the impact will not occur;33

(c) growth
- inducing or growth
- inhibiting aspects of the impact, including the relationship or contribution of the impact to cumulative impacts; (d) the quantity and quality of each environmental resource or value that would be affected, inc luding the uniqueness and fragility of those resources or values; (e) the importance to the state and to society of each environmental resource or value that would be affected; (f) any precedent that would be set as a result of an impact of the proposed action that would commit the department to future actions with significant impacts or a decision in principle about such future actions; and (g ) potential conflict with local, state, or federal laws, requirements, or formal plans. Admin
. R. M. 36.2.524. An EA is highly specific to the project and locale, “thus creating
no binding precedent. ” Barnes v. U.S. Dep t. of Trans. , 655 F.3d 1124, 1140 (9th Cir. 2011). ¶54 Env

ironmental rev

iew under NEPA (and there fore MEPA) is not retroactive. Activity existing prior to enactment of the law and not potentially undergoing “ further
ma jor [] action” does notrequire an EIS
. Westside Property Owners v. Schlesinger , 597 F.2d 1214, 1223
- 24 (9th Cir. 1979)
. “ If an ongoing project undergoes chang es which themselves amountto ‘ major [state] action s , ’ the operating agency must prepare an EIS. ” Ravalli County Fish & Game Assn . , 2 7 3 Mont. at 378
-79, 903 P .2d at 1367 ( quoting Upper Snake R. Chapter of Trout Unlimited v. Hodel , 921 F.2d 232, 234 (9th Cir. 1990 ) ). W here a proposedaction would not change the status quo, the MEPA review process is not triggered
. Ravalli County Fi sh & Game Ass n. , 273 M ont. at 378
-79, 903 P .2d at 1367 ; Upper Snake R. Chapter of Trout Unlimited, 921 F.2d at 235. “An EIS need not discuss the env

ironmental effects of continuing to use land in the manner in which it is presently being used.” Sabine R. A uthority v. U.S. Dept. o f Interior , 951 F.2d 669, 67934

(5th Cir. 1992) (citing Upper Snake R. Chapter of Trout Unlimited, 921 F.2d at 235 ) (holding that a

n ag ency’s acquisition of an easement did not effectuate any change to the environment that would trigger an EIS )
. ¶55 I f the changes are “substantial enough to constitute a ‘major federal [or state] action’” or have the potential to significantly affect the quality of the human environment, then MEPA

—like NEPA

— re quires the ag

ency to ev

aluate those changes for significant impacts. Compare Westside Property Owners , 597 F.2d at 1223 (post
-NEPA agreement for military training exercises not a “major federal actio n” in light of longstanding approval of d esign for training program) wi th Ravalli County Fish & Game Assn. , 273 Mont. at 379
- 80, 903 P.2d at 1368 (change in grazing permit from grazing cattle to g

razing sheep adjacent to big horn rang e did not constitute maintaining the status quo and further MEPA analysis was triggered). ¶56 In 2003, the MBOGC issued an order granting Fidelity’s application to increase well density in the CCA. Though it might have been an opportune time to do so, Federations did not seek ap rogrammatic EIS when that order was issued
. ¶57 Richmond explained in a letter to NWFin 2008 , submitted by Federations as an exhibit to their motion for summary judgment , that the order authorizing increased well density was issued as a means to address inequities between adjoining landowners . He explained that its effect was both to serve as a determin ationthat the well spacing did not constitute waste by promoting unnecessary wells and to promote conservation by
ma ximizing the recovery of existing ga s res ources. Richmond advised that it was35

unlikely the number of wells authorized by the Board Order “will be drilled immediately.” He noted that the average five
- year net increase in producing gas wells for the Montana portion of the Williston Basin is seventy- one new wells per year. Through the affidavit of Bruce Bowman, Fidelity confirmed in the District Court that it anticipated drilling approximately 40
- 100 well s per year in 2009 and 2010. ¶58 At the time the permits were issued in this case , m uch of the infrastructure already
was in place with only minor improvements needed. Fidelity employee Dennis Zander described in his affidavitto the courtFidelity’s attempt to minimizethe impact of the gas wells at issue
. Noting Gore’s concerns that eight of the wells could adverse lyi mpact sage grouse, Zander explained that “the infrastructure Fidelity will install with respect to these eight wells is minimal.” Zander provided specific comments about the limited impacts of the wells, including their virtually silent operation and Fidelity ’s ability to access the wells’ electronic metering equipment remotely. Once a well is completed, there is little vehicular traffic associated with its operation , with most wells being accessed by veh icle less than once a week
. He stated that this method of production operations has been commended by BLM biologists for minimizing noise that might impact sage grouse. ¶59 Despite the Board’s finding of no significant impacts , Federationscontend that the MBOGC must perform a programmatic review of ongoing oil and gas development in the CCA, pointing to Fidelity’s anticipated drilling in the future . They further argue that the 1989 PEIS was not a programmatic review, but rather a “framework” for the ag ency’s36

future performance of

MEP A reviews and that further area- specific review was contemplated by the agency andi s necessary. Appellees argue that the addition of twenty- three wells (now six or fewer), is not a “major state action” requiring a programmatic review and that speculationabout future drilling does not prov ide a basis for mandating an EIS in this case. ¶60 We concludet

hatt he Board was not arbitrar y or capriciousin its determin ation th atdrilling twenty- three wells in an existing f ield of ov

er a thousand, with most of the
n ecessary infrastructure already in place and minimal anticipated impacts , was not a ma jo r state action necessitating a programmatic EIS. Incremental infill well development on the field may necessitate an EIS if, at some point, such development meets the factors discussed in Admin
. R. M. 36.2.524. Our holding here does not preclude the requirement for an EIS at a future date. Barnes , 655 F.3d at 1140. On this record, Federationshav e not met their burden of demonstrating that MBOGC’s decision was arbitrary, capricious, unlawful, or unwarranted by the facts. **CONCLUSION** ¶61 The District Courtproperly applied§ 8 2
- 11
- 144, MCA, in considering e vidence outside the administrative record. We caution MBOGC that its use of the checklist EA form, while permissibl e under the law and under the 1989 EIS, should contain sufficient explanation to provide the public and a reviewing court with a clear statement of reasons to explain why a project’ s impacts arenot significant
. On theb asis of the record developed in theD istrict Court , however, we conclude that MBOGC complied with37

MEPA in issuing permits for the wellsat issue
. Under the specific facts existing at the time these permits were issued , Federations did not demonstrate the need for further cumulative impactsanalysis or for a prog rammatic EIS as to oil and gas development in the CCA
. The District Court’s grant of su mmary j udgment in favor of Appellees is affirmed.

/S/ BETH BAKER
We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ JIM RICE /S/ J AMES B. WHEELIS Hon. James B. Wheelis, District Judge Sitting in place of Justice Nelson

Justice Michael E Wheat dissents. ¶62 I respectfully dissent. ¶63 The majority correctly notes that an EA may be in a checklist format. Opinion , ¶ 44. A checklist EA, however, must still comply with the requirements of MEPA. This38

includes an analysis of

the cumulative and secondary impacts. Opinion , ¶ 45. The
ma jority concludes, based on the “extensive administrative record and [the] institutional body of knowl edge” within the MBOGC, that the MBOGC did not ignore cumulative impacts in its assessment of the wells at issue. Opinion , ¶ 49. This conclusion, however, ignores the unambiguous intent of the Legislature and t he very purpose of requiring an environmental assessment. MEPA is procedural, but it was the intent of the Legislature that MEPA would provide an adequate review of state actions to ensure that “the public is informed of the anticipated impacts in Montana of potential state actions.” Section 75
- 1
- 102(b), MCA. The Legislature additionally made it clear that the unequivocal purpose of requiring an environmental assessmentis to “inform the public and public officials of potential impacts resulting from decisions made by state agencies.” S ection 75
- 1
- 102(3)(a); See State ex. rel. Mont. Wi lderness Assn. v. Board of Nat
. R esources & Conservation , 200 Mont. 11, 30, 648 P.2d 734, 744 (1982) (“The primary function of the EIS is to provide the decisionmaker with environmental reports sufficiently detailedto allow a knowledgeable judgment and to allow public feedback in the development of that information.”) ¶64 The public is not informed when an agency’s decision
-making process is concealed within the confines of its institutional knowledge, and the only wayto uncover the details is by engaging in lengthy litigation. Nor is the public benefitted by reviewing
an EA which does not explicitly set forth the actual cumulative impacts and the facts which form the basis of the analysis. See Friends of Wi ld Swan v . Dept. of Nat.39

Resources&C

onservation , 2000 MT 209, ¶ 35, 301 Mont. 1, 6 P.3d 972. Because the public has been left in the dark, I would reverse the District Court and find that the MBOGC’s EAs are inadequate. ¶65 I believe that the EAs are inadequate beca use they contain only generalized conclusory statements in the form of expert narratives

–o r as the ma jority calls it , “institutional knowledge.” Each of the twenty- three EAs dev otes a single line to “Evaluation of Impacts and Cumulative effects .” The “ answer” to this question is some variation on the statement: “No long term impacts expected. Short term impacts will occur but can be mitigated in time.” This explanation is inadequate because it provides no information to the public, thereby undermining the purpose of MEPA and preventing any meaningful public participation. ¶66 Moreover, the EAs are not properly tiered to the 1989 PEIS and the 2003 FEIS. Tiering is not defined in MEPA or its associated administrative rules. I t is, however, defined in NEPA ’s regulations:

“ Tiering ”ref ers to the coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide pro gram statements or ultimately site
specific statements) incorporating by reference the general discussionsand concentrating solely on the issues specific to the statement subsequently prepared. 40 C.F.R. § 1508.28 (2012) (emphasis added). The plain lang uag e under NEPA requires the tiered document to be explicitly incorporated. This insures that the public is informed of the documents underlying an agency decision.40

¶67 Here, MBOGC admits that it failed to explicitly reference that the EAs were tiered to th e 1989 PEIS or the 2003 F EIS. Opinion , ¶ 39. The majority disregards this failure and claims that it is “clear from the record that MBOGC staff relied on these past reviews in dev eloping the EAs at issue here.” Opinion , ¶ 42. MBOGC’s reliance on these documents is appropriate, but it remains that the public was not informed of this reliance at the time the EAs were published. C onsequently, because the EAs were completely devoid of any mention or reference to these EISs, they are inadequate. ¶68 Ev en if the ag

ency did implicitly tier the EAs to the prior EISs, I would still find the EAs inadequate because MBOGC’s fa ilure to reference them in the EAs undermines the purpose of MEPA. MEPA requires MBOGC to inform the public of not only the documents it relie s on, but also the specific information within the relied upon documents. MBOGC did neither. As a result, the public remains uninformed and is unable to meaningfully p articipate in the MEPA process. ¶69 The actions of the MBOGC are not only improper, but they undermine MEPA. Given that MEPA is a procedural statute, I cannot condone the EAs at issue because they
are not in compliance with MEPA’s plainly articulated procedures. The cumulative impacts and any tiered documents should have been clearly set forth to ensure an informed public. I

nstead, the MBOGC’s failure to comply with MEPA has forced the public to engage in time consuming and costly litigation. I believe that the public should not be forced to rely on litigation to uncover information that rightly should have been disclosed in the EAs.41

¶70 For these reasons , I would find that the EAs at issue are unlawful. See N. Fork Preservation Assn. , 238 Mont. 451, 460
- 64, 778 P.2d 862, 868
- 70 (1989). I would therefore reverse the District Court’s grant of summary judgment and remand this case for entry of judgment in favor of the Federations. /S/ MICHAEL E WHEAT Justice Brian Morris joins in the foregoing dissent. /S/ BRIAN MORRIS